July 30, 2015
On May 14, 2015, the Baltimore City Liquor Board heard testimony on three alleged violations of law committed by the licensee at Stadium Lounge, at 3351-55 Greenmount Avenue in Waverly. The three alleged violations were: (1) illegal gambling at a video poker machine (2) noncooperation with the police, and (3) illegal conduct. Vice Unit police officers from the Baltimore City police department testified that, on March 12, 2015, they had executed a search warrant after an investigation into the illegal video poker payoffs at this location. When the police arrived, the licensee tried to hide some of the money from the machines in his car. The licensee admitted that he was responsible for all three charges. The Board then heard extensive testimony from community members and representatives about the extremely negative impact that this particular establishment has had on the surrounding neighborhood. Representatives from the Waverly Improvement Association, the Greater Homewood Community Corporation, Waverly Main Street, and the Oakenshawe Improvement Association all testified in opposition to this licensee. Detectives Greenhill and Gatto, also testified that they had received a disproportionate number of complaints about underage drinking, noise, and illegal gambling about this particular tavern.
Though the community had requested a revocation of the license, the commissioners chose instead to give a six-month suspension and the maximum fine allowed by law: $3,000 for each violation, for a total of $9,000.
The licensee appealed the suspension and fine to the Circuit Court, in case number 24C15002558. The licensee requested an emergency stay of the Board’s suspension, which Judge Geller denied on June 30, 2015, which, coincidentally, was the last date of the term of Chairman Ward and Commissioner Moore. A hearing on the licensee’s appeal was scheduled for September 10, 2015.
On July 16, 2015, the licensee’s attorney, Frank V. Boozer, Jr., sent a letter to newly appointed chairman Benjamin Neil asking that the Board reconsider its decision and lift the suspension. You can view the letter here, at the link.
On July 24, 2015, according to Liquor Board staff, Mr. Boozer and Mr. Neil met privately and agreed to settle the appeal. Read the consent judgment here, at the link. The agreement states that the Board will lift the suspension in exchange for the licensee’s agreement to meet with the community to work out an MOU within 30 days. (The community members present at the May 14, 2015 hearing alleged that they had already negotiated an MOU with Mr. Kim, the licensee, which he had repeatedly broken; Mr. Kim’s attorney denied that there was a valid MOU in place.) It also says that if Mr. Kim is found responsible for another violation within one year, he will have to serve the rest of the suspension. The settlement was filed with the Circuit Court on Friday, July 24, and the Stadium Lounge reopened that weekend.
When evaluating the legitimacy of this decision, it is important to figure out whether this decision was a “reconsideration” or a “settlement.”
Reconsideration: Mr. Boozer’s letter requests a “reconsideration.” In Maryland, the Court of Appeals has created the following rule about administrative agency reconsiderations in a case called Calvert County Planning Commission v. Howlin Realty Management: “An agency, including a planning commission, not otherwise constrained, may reconsider an action previously taken and come to a different conclusion upon a showing that the original action was the product of fraud, surprise, mistake, or inadvertence, or that some new or different factual situation exists that justifies the different conclusion. What is not permitted is a ‘mere change of mind’ on the part of the agency.” In this case, Mr. Boozer has provided no evidence of fraud, surprise, mistake, or inadvertence, or any new or different factual situations. To the contrary, he is complaining about the consequences of the punishment that are exactly what the Board intended to impose: financial loss is the whole point of a suspension. If the Board’s action was a reconsideration, it may have been an illegal one under the Calvert County case, because it seems to be a mere change of mind.
Settlement: The two parties to the Circuit Court appeal are the licensee and the agency; therefore, if they are able to reach a settlement of the case, and there is no community association or group of neighbors who are also involved as interested parties, the court will dismiss the case. However, does the Chairman have the authority to speak for the entire agency and make decisions unilaterally on behalf of the Board? From the description of the July 24 meeting and agreement, it seems as though the other two commissioners were not involved with the decision.
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